On March 2, 2015, The New York Times reported that Hilary Clinton, during her tenure as Secretary of State, may have violated federal regulations by using her personal e-mail to conduct government business. The report says that Clinton aides took no measures to preserve the personal emails on the department servers, which is required by the Federal Records Act.
City Investigation of Law Enforcement Whistleblower Allegations Subject to Disclosure; No Redaction of Witness Identification
In early 2011, City of Fife police officers submitted a whistleblower complaint to the City Manager. The complaint covered a range of topics including discrimination, misappropriation of public funds and improper workplace relationships. The City retained an outside entity to investigate the allegations. The City determined the investigation was thorough and the allegations were either not sustained or unfounded. One of the complaining officers submitted a public records request for the report, audio recordings and transcripts of interviews, and other records relating to the whistleblower complaint and investigation. The City began producing installments in May 2012, but redacted names and identifying information of witnesses, the accused officers, and complaining parties. The City also commenced an action for declaratory and injunctive relief regarding its obligations to produce records.
On February 24, 2015, the Washington State Court of Appeals determined that while the City’s records were “specific investigative records,” and might qualify for a public records exemption, that was only a part of the test. City of Fife v. Hicks, (Division II, No. 45450-5). The Court held that the City was unable to demonstrate non-disclosure was essential to effective law enforcement. The Court pointed to earlier precedent that expressly rejected the concept that a “generalized fear that disclosure of witness names will chill cooperation within investigations,” citing Sargent v. Seattle Police Department, 179 Wn.2d 376, 395 (2013) (generalized fear, alone, insufficient to justify non-disclosure). In the Fife case, the Court also rejected the City’s claim that disclosure of witnesses would violate a witness’s right to privacy. This was particularly the case here where dealing with public employees whose conduct is a matter of greater interest to the public. Additionally, the City could point to no foundation that the requester’s own name could be redacted from a record requested by that person. While this case may not present substantially new information for agencies complying with the Washington Public Records Act, it does emphasize the need to manage investigations in a manner attentive to future Public Records Act responsibilities.
In Bichindaritz v. University of Washington, Division One of the Court of Appeals reversed a $723,290.50 penalty and $102,958.03 attorney fee award for violations of the Public Records Act by the University of Washington. The trial court had concluded that the University’s production of documents to the requestor, a former employee who had sued the University, was not in good faith and that the University waited too long to produce records it had already assembled but had not yet reviewed. The University appealed.
In particular, the University challenged the trial court’s conclusion that as soon as the University had assembled the responsive documents, they were ready to be produced to the requestor. The Court of Appeals agreed with the University, explaining that the Public Records Act requires that responses to records requests be made “promptly,” but also expressly recognizes that an agency may need additional time to determine whether any part of the information requested is exempt. See RCW 42.56.520. As the court summarized:
By the time Bichindaritz closed her 2009 request in February 2011, the University had assembled about 25,000 pages but had reviewed only about half of them for exemptions. It was unreasonable to expect the University to produce the remaining 12,000 pages the same day Bichindaritz reopened her request simply because it had already assembled those documents.
Opinion at 7 (emphasis in original).
The Court of Appeals also rejected the requestor’s argument that the University’s violation could be sustained on the basis that the University “repeatedly missed production deadlines.” The court observed that the Public Records Act demands only that an agency provide reasonable estimates for production—not necessarily that an agency comply with its own self-imposed deadlines. “The question is whether the agency ‘was acting diligently in responding to the request in a reasonable and thorough manner.’” Opinion at 9 (citing the recent decision in Hobbs v. State). Here, the requestor did not argue – and the record did not indicate – that the University was less than diligent in completing its review and redaction of the final records for production. Concluding that the University had not violated the Public Records Act, the Court of Appeals reversed the trial court’s imposition of penalties and attorney fees.
Under Washington’s Public Record Act, an action challenging an agency’s refusal of records must be filed within one year of the agency’s claim of exemption. RCW 42.56.550(6). The Supreme Court holds that an insufficient exemption log will not trigger the running of the statute of limitations.
Rental Housing Association of Puget Sound v. City of Des Moines, 165 Wn.2d 525 (2009 A “log need not be elaborate but should allow a requestor to make a threshold determination of whether the agency has properly invoked the exemption.” WAC 44-14-04004(4)(b)(ii). ). See also December 15, 2014 posting entitled "Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's 'Brief Explanation' Requirement."
On February 9, 2015, the Washington Court of Appeals considered a PRA claim filed against the Washington Criminal Justice Training Commission (WSCJTC). John F. Klinkert v. Wa State Crm Justice Training Commission. WSCJTC responded to a PRA request with a one page log for two records.
One of the records was a 713-page investigative file. WSCJTC claimed the entire file exempt under RCW 43.101.400(1) as records “that may be used by WSCJTC in an investigation of [a deputy sheriff’s] certification.” After the WSCJTC responded to the PRA request, there were further exchanges between Klinkert and WSCJTC, but no change in position. Later, Klinkert filed his action more than one year after the initial rejection of his request. The Court upheld the application of the one year statute of limitation, finding that there was sufficient information in the WSCJTC exemption log for Klinkert to understand the basis for the claim of exemption. His claim was time barred by the statute and properly dismissed.
The Seattle Times reported on the Washington Liquor Control Board's payment to settle a claim under the Open Public Meeting's Act. Read the full article titled "Liquor Board pays $192K to make public records gadfly go away" here.
As part of its 2014 Statement of Legislative Intent (SLI), the Seattle City Council requested that the City Clerk, the City Attorney’s Office and various executive departments form a PDR [Public Disclosure request] Task Force to: (i) identify shortcomings in the City’s current approach to fulfilling PDRs; and (ii) make recommendations regarding appropriate City-wide policies. See SLI 13-2-A-1. The Task Force briefing outline for the City Council (January 5, 2015) is available here.
Included in the preliminary recommendations are:
- Create a Citywide Public Records Act (CPRA) program to centrally manage the public disclosure function for complex requests.
- Strengthen support for Public Disclosure Officers.
- Develop centralized PDR Portal & tracking system that allows public access.
- Expand the PRA training curriculum.
- Measure customer satisfaction.
Washington Supreme Court Orders Attorney Fees And Costs To Requester For Agency's Violation Of PRA's "Brief Explanation" Requirement
The Public Records Act (PRA) requires that when an agency withholds or redacts records, its response “shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.” RCW 42.56.210(3). In a 5-4 decision, the Washington Supreme Court held in City of Lakewood v. Koenig that an agency’s violation of this requirement entitles the requester to attorney fees and costs, regardless of whether the records were properly withheld.
In this case, David Koenig had requested records from the City of Lakewood relating to certain police officer incidents. In its response, the city redacted, among other things, driver’s license numbers from the records, citing to various statutory provisions without additional explanation. In a majority opinion written by Justice Steven González, the court found that the city’s response violated the PRA because the city either failed to cite a specific exemption or failed to explain how the particular statute applied to the redacted driver’s license numbers in the specific records produced. As a result, “the burden was shifted to the requester to sift through the statutes cited by the city and parse out possible exemption claims.” Opinion at 7-8. Because the PRA provides that costs and reasonable attorney fees shall be awarded to a requester for vindicating “the right to receive a response,” the court held that Koenig was entitled to his attorney fees and costs, including those on appeal. Id. at 10-12.
In explaining its decision, the court observed that the level of detail an agency needs to provide will depend on both the nature of the exemption and the nature of the document or information. For example, if it is clear on the face of a record what type of information has been redacted and that this type of information is categorically exempt, citing to a specific statutory provision may be sufficient. But for other exemptions, including the “other” statute exemptions that the city cited, “additional explanation is necessary to determine whether the exemption is properly invoked.” Id. at 8.
In a dissenting opinion joined by three other justices, Chief Justice Barbara Madsen asserted that the majority’s decision imposed an additional burden on agencies to provide enough explanation to prove its claimed exemptions are correct, which the PRA does not require. The dissent distinguished the facts in Sanders v. State, 169 Wn.2d 827 (2010), observing that, here, “the city explained what information it actually withheld—driver’s license numbers—and it explained why—the cited statutes.” Dissenting Opinion at 2. While the dissent acknowledged that attorney fees may be warranted if an agency fails to identify a record or give its reason for withholding, the dissent would have held that attorney fees are not independently warranted if the agency has identified the record and given its reason for redacting or withholding the record.
On November 25, 2014, the Everett [WA] Herald reported that a man has requested records from the Snohomish County Sheriff’s Office dating to July 4, 1776. Perhaps the requestor was not much of a student of history, as Snohomish County was created by the Washington Territorial Legislature on January 14, 1861 (out of Island County). Click here for the story.
Unfortunately, the Washington Public Record Act (PRA) does not provide ready relief to public agencies facing such absurd requests. Only if the requester is an inmate is there opportunity for relief. See RCW 42.56.565 authorizing injunctions to prohibit requests “made to harass or intimidate the agency or its employees.”
The Wisconsin Counties Association (WCA) is an unincorporated not-for-profit association of that State’s counties. The Wisconsin Professional Police Association submitted two requests for records to the WCA under the Wisconsin Public Records Law. Wisconsin courts previously recognized that under a ”totality of the circumstances” test an entity may be a quasi-governmental organization that resembles a governmental corporation and subject to the Public Records Law. That holding even applied to a private corporation. This is similar to the Washington court’s holding in Clarke v. Tri-Cities Animal Care and Control Shelter, 1444 Wn. App. 185 (2008). There, the court applied the 4-part under Telford v. Board of Thurston County Board of Commissioners, 95 Wn. App. 149, review denied, 138 Wn.2d 1015 (1999). In the recent Wisconsin decision (September 18, 2014), the court applied a restrictive standard in rejecting the application of the Public Records Law to the WAC. The court relied on the fact that the WAC was an association and not a corporation. The court found that the Wisconsin legislation said “corporation,” and that is what the Legislature meant. This distinction will not likely apply in Washington, where the public disclosure laws broadly defines “agency.” See RCW 42.17A.005 (campaign finance) and RCW 42.56.010 (Public Records Act). And, Washington courts will apply a “functional equivalent” test to determine whether an entity should be subject to the Washington Public Records Act. The elements of that test are: (1) whether the entity performs a governmental function, (2) the level of government funding, (3) the extent of government involvement or regulation, and (4) whether the entity was created by the government.
Washington Appellate Court Addresses, Again, PRA Statute Of Limitations For Single Production Responses - Is The Air Clearing?
In 2005, the Washington Legislature amended the Public Records Act to shorten the statute of limitations from five years to one year. See Laws of 2005, ch. 483, § 5; former RCW 42.17.410. Actions for judicial review under RCW 42.56.550 now “must be filed within one year of the agency’s claim of exemption or the last production of a record on a partial or installment basis.” RCW 42.56.550(6). Since this amendment, however, appellate courts have given the statute inconsistent treatment in cases involving single productions where no exemptions were claimed by the agency. This issue most recently arose in last week’s decision from Washington’s Court of Appeals (Division I) in Mahmoud v. Snohomish County, No. 70757-4-I (unpublished). There, the court held that the one-year statute of limitations barred all of the requestor’s claims.
Division I previously addressed this statute in Tobin v. Worden, 156 Wn. App. 507 (2010). In that case, the court held that the one-year limitations period is triggered only by a claim of exemption or the agency’s “last partial production” – meaning the production of a record that is “part of a larger set of requested records.” Id. at 514 (quoting RCW 42.56.080). Because the production in Tobin involved no exemption and the production of a single document, the court held that the one-year statute of limitations did not apply.
Division II disagreed with Tobin. Division II first addressed the case in Johnson v. State Department of Corrections, 164 Wn. App. 769 (2011). After noting that Tobin did not address the potential applicability of the two-year “catch-all” limitations period in RCW 4.16.130, the Johnson court observed that “it would be an absurd result to contemplate that, in light of two arguably applicable statutes of limitations, the legislature intended no time limitation for PRA actions involving single-document production.” Id at 777. The Johnson court did not ultimately determine which limitations period applied because the action had been filed more than two years after the agency response and was therefore barred by the catch-all limitations period in any event.
In Bartz v. State Department of Corrections Public Disclosure Unit, 173 Wn. App. 522 (2013), Division II was required to resolve this issue. Bartz involved a single production of records that occurred more than one year, but less than two years, prior to the lawsuit. Following its reasoning in Johnson, the Bartz court explained that it “would also be absurd to conclude that the legislature intended to create a more lenient statute of limitations for one category of PRA requests.” Id. at 537. Expressly rejecting Tobin, the Bartz court concluded that the legislature intended the PRA’s one-year statute of limitations to apply to requests completed by a single production of records. The court declined to follow a literal reading of the statute because doing so would lead to absurd results. Despite the apparent conflict between the Courts of Appeals, the Supreme Court denied review in Bartz. See 177 Wn.2d 1024 (2013).
With Division I’s recent decision in Mahmoud, the courts appear to be trending toward the one-year limitations period for single productions. One of the plaintiff’s public records requests in Mahmoud involved a single production that was later followed by a letter confirming that no other responsive documents existed. The plaintiff argued that this production was incomplete and therefore could not trigger the limitations period. The court disagreed, quoting language from Bartz and Johnson that it would be an absurd result to conclude that the legislature intended no statute of limitations for PRA actions involving a single production of documents. Opinion at 14-15; see also id. at 18. Regardless of whether the court considered the single production itself or the confirming letter to be the trigger, the one-year period expired at least seven months before the plaintiff’s suit was filed. Id. at 15.
Division I’s decision in Mahmoud suggests that the court has reconsidered its position on the statute of limitations in RCW 42.56.550. At minimum, it raises doubt as to the continuing precedential value of Tobin. The court cited Tobin as contrary authority in a footnote, but did not elaborate further. Of passing interest is that Chief Judge Michael Spearman, who concurred in Mahmoud, was also a concurring judge in Tobin. At present, no motion to publish the opinion or petition for review to the Supreme Court has been filed. Those deadlines are November 17 and 26, respectively.